Table of Contents

Table of Authorities............................................................................................ ii

Statement of Interest........................................................................................... 1

Statement of the Issues....................................................................................... 2

Statement of the Case......................................................................................... 3

A. Statement of Facts.................................................................................... 3

1. Exhaustion of Administrative Remedies................................................ 4

2. Reassignment Without Competition...................................................... 5

B. District Court Opinion.............................................................................. 6

Summary of Argument....................................................................................... 6

Argument........................................................................................................... 8

A. Supreme Court and Tenth Circuit precedent hold that exhaustion of administrative remedies is not a jurisdictional prerequisite to suit under the Americans with Disabilities Act but is, instead, a condition precedent subject to waiver....... 8

B. Smith v. Midland Brake precludes this Court from affirming on the alternative ground that Lincoln and Mosbrucker were not the most qualified applicants when they sought reassignment as a reasonable accommodation for their disabilities............ 14

Conclusion....................................................................................................... 20

Certificate of Compliance

Certificate of Digital Compliance

Certificate of Service

Table of Authorities

Cases

Aka v. Wash. Hosp. Ctr., 156 F.3d 1284 (D.C. Cir. 1998) (en banc).............. 15, 16

Allen v. Highlands Hosp. Corp., 545 F.3d 387 (6th Cir. 2008)...................... 10, 13

Arabalo v. City of Denver, 625 F. App’x 851 (10th Cir. 2015)............................ 11

Arbaugh v. Y&H Corp., 546 U.S. 500 (2006)............................................ 8-10, 13

Artis v. Bernanke, 630 F.3d 1031 (D.C. Cir. 2011)............................................. 11

Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256 (3d Cir. 2006).......................... 10

Daugherty v. City of El Paso, 56 F.3d 695 (5th Cir. 1995).................................. 16

Davis v. N.C. Dep’t of Corr., 48 F.3d 134 (4th Cir. 1995).................................. 11

Davoll v. Webb, 194 F.3d 1116 (10th Cir. 1999)................................................ 15

Duvall v. Georgia-Pac. Consumer Prods., 607 F.3d 1255

(10th Cir. 2010)..................................................................................... 15, 17-18

EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015).................... 19

EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024 (7th Cir. 2000)........................ 18

EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333 (11th Cir. 2016)................ 16, 19

EEOC v. United Airlines, Inc., 693 F.2d 760 (7th Cir. 2012)......................... 16. 18

Fowlkes v. Ironworkers Local 40, 790 F.3d 378 (2d Cir. 2015)..................... 10, 13

Gad v. Kansas State Univ., 787 F.3d 1032 (10th Cir. 2015)....................... 8, 10-13

Gibson v. West, 201 F.3d 990 (7th Cir. 2000)............................................... 10, 13

Hedrick v. W. Reserve Care Sys., 355 F.3d 444 (6th Cir. 2004).......................... 16

Huber v. Wal-Mart Stores, Inc., 486 F.3d 480 (8th Cir. 2007)............................ 16

Jackson v. Seaboard Coast Line R.R., 678 F.2d 992 (11th Cir. 1982).................. 10

Jones v. Needham, 856 F.3d 1284 (10th Cir. 2017)............................................ 13

Jones v. United Parcel Serv., Inc., 502 F.3d 1176 (10th Cir. 2007)............ 6, 10, 12

Love v. Pullman Co., 404 U.S. 522 (1972)........................................................... 9

Macias v. S.W. Cheese Co., 624 F. App’x 628 (10th Cir. 2015).......................... 11

Martinez-Rivera v. Commonwealth of P.R., 812 F.3d 69 (1st Cir. 2016)............. 10

Pham v. James, 630 F. App’x 735 (10th Cir. 2015)............................................ 11

Ruiz v. Brennan, 851 F.3d 464 (5th Cir. 2017)................................................... 11

Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304 (10th Cir. 2005)........ 10, 12-13

Smith v. Midland Brake, Inc., 180 F.3d 1154

(10th Cir. 1999) (en banc).......................................................... 1-2, 5, 7-8, 14-20

Sommatino v. United States, 255 F.3d 704 (9th Cir. 2001).................................. 11

Stache v. Int’l Union of Bricklayers & Allied Craftsmen,

852 F.2d 1231 (9th Cir. 1988)........................................................................... 11

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)................................ 12

United States v. Hathaway, 318 F.3d 1001 (10th Cir. 2003).......................... 12, 13

United States v. Killion, 7 F.3d 927 (10th Cir. 1993).......................................... 12

U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002)....................... 2, 5, 8, 14, 17-20

Wickware v. Manville, 676 F. App’x 753 (10th Cir. 2017).................................. 11

Wilson v. Sirmons, 549 F.3d 1267 (10th Cir. 2008)............................................ 14

Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982)........................... 8-11, 13

Statutes

Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq................................. 1

§ 12111(8).............................................................................................. 14

§ 12111(9)(B).............................................................................. 14, 15, 17

§ 12112(b)(5)(A)............................................................................... 14, 16

§ 12117............................................................................................. 1, 6, 8

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.................... 1

§ 2000e-4................................................................................................. 1

§ 2000e-5............................................................................................. 1, 5

§ 2000e-6................................................................................................. 1

§ 2000e-8................................................................................................. 1

§ 2000e-9................................................................................................. 1

Rule

Fed. R. App. P. 29(a).......................................................................................... 2

Other Authority

EEOC Enforcement Guidance: Reasonable Accommodation and Undue

Hardship Under the Americans with Disabilities Act, 2002 WL 31994335

(Oct. 17, 2002)...................................................................................... 14-15, 17

Statement of Interest

The Equal Employment Opportunity Commission (“EEOC”) is charged by Congress with interpreting, administering, and enforcing the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. The ADA incorporates by reference the enforcement scheme of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. See 42 U.S.C. § 12117 (incorporating the “powers, remedies, and procedures” of 42 U.S.C. §§ 2000e-4, -5, -6, -8, -9). Title VII, in turn, requires individuals to exhaust administrative remedies before filing suit. See 42 U.S.C. § 2000e-5(e) (requiring timely charge). At issue in this case is whether exhaustion of administrative remedies is a jurisdictional prerequisite to suit or whether it is a condition precedent subject to waiver. Supreme Court and Tenth Circuit precedent hold that exhaustion of administrative remedies is not jurisdictional and that it may therefore be waived. Nevertheless, the district court held otherwise and wrongly disregarded BNSF’s waiver.

Additionally, the EEOC anticipates that BNSF will argue for affirmance on the alternative ground that Lincoln and Mosbrucker were not the best-qualified applicants when they sought reassignment as a reasonable accommodation for their disabilities. This Court has already held that, absent undue hardship, the ADA requires reassignment without competition when no reasonable accommodation can keep a disabled employee in his or her current job. Smith v. Midland Brake, Inc., 180 F.3d 1154, 1169 (10th Cir. 1999) (en banc). BNSF argued to the district court that U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), has abrogated Smith. The EEOC disagrees.

Because the EEOC has a strong interest in seeing that courts interpret the ADA correctly, it offers its views on these two issues. The EEOC files this brief pursuant to Rule 29(a) of the Federal Rules of Appellate Procedure.

Statement of the Issues

1. Did the district court err by not following precedent from the Supreme Court and this Court holding that exhaustion of administrative remedies is not a jurisdictional prerequisite to suit under the ADA but is, instead, a condition precedent subject to waiver?

2. Does U.S. Airways v. Barnett, which recognizes that reassignment is a reasonable accommodation in the “run of cases,” confirm this Court’s holding in Smith v. Midland Brake that, absent undue hardship, an employer must reassign a disabled employee to a vacant position when no reasonable accommodation can keep him in his current job?

Statement of the Case

A. Statement of Facts[1]

Larry Lincoln and Brad Mosbrucker were working as “maintenance of way” workers for BNSF when they were exposed to a hazardous chemical leaking from a tank car. Both employees were treated in an emergency room and returned to work without restrictions. App’t App’x at 59. Two and a half years later, their attorney sent a letter to BNSF describing serious, ongoing symptoms as a result of the chemical exposure. Id. BNSF responded to the letter by placing Lincoln and Mosbrucker on a medical leave of absence pending a fitness for duty determination. Id. at 60. Upon learning that outdoor exposure worsened their symptoms, BNSF did not return them to their positions. Id. at 70.

Over the next few years, Lincoln and Mosbrucker sought transfers into positions that did not require outdoor exposure. They each submitted multiple applications for a variety of jobs, and BNSF rejected them every time. Id. at 71-73.

On February 10, 2013, Lincoln and Mosbrucker filed administrative charges with the EEOC alleging that BNSF had refused to accommodate their disabilities by transferring them to vacant positions for which they were qualified. They said that BNSF had rejected multiple applications for a variety of jobs. Id. at 52, 53. After Lincoln and Mosbrucker filed EEOC charges, BNSF again denied them various transfers. Id. at 72-73. On May 7, 2015, Mosbrucker filed a second EEOC charge describing these additional rejections. Id. at 76.

In September 2015, Lincoln and Mosbrucker filed suit under the ADA, alleging in part that BNSF had failed to provide a reasonable accommodation for their disabilities by refusing to transfer them into vacant positions for which they were qualified. They stated that after filing their EEOC charges, they continued to bid on vacant positions and BNSF continued to reject their applications. Id. at 20-21.

1. Exhaustion of Administrative Remedies

BNSF moved to dismiss all claims related to post-charge denials of transfers on the ground that Lincoln and Mosbrucker had not exhausted administrative remedies for denials occurring after they filed their charges. Id. at 32. As the district court noted, the parties subsequently resolved the motion to dismiss by stipulating that the plaintiffs had exhausted their administrative remedies for all ADA claims asserted in their complaint. Accordingly, the court ruled that the stipulation had mooted BNSF’s motion to dismiss. Id. at 32-33.

In its motions for summary judgment, BNSF disavowed its stipulation and renewed its argument that Lincoln and Mosbrucker had not exhausted their administrative remedies for post-charge denials of transfers. Id. at 74. For the first time, BNSF argued that exhaustion of administrative remedies is a jurisdictional prerequisite to suit that is not subject to waiver. Id. at 75-76. Lincoln and Mosbrucker disagreed that exhaustion is a jurisdictional requirement, and they maintained that BNSF had waived the exhaustion issue by stipulating that both plaintiffs had satisfied all exhaustion requirements. Id. at 75-77.

2. Reassignment Without Competition

With respect to the denials of transfers occurring within the 300-day charge-filing window, see 42 U.S.C. § 2000e-5(e)(1), BNSF asserted that it rejected Lincoln and Mosbrucker because they were not qualified to perform the essential functions of the jobs they sought. App’t App’x at 92, 100. But even if they were qualified, BNSF said, they were not the best-qualified candidates. Id. at 102. BNSF acknowledged this Court’s precedent prohibiting employers from requiring qualified disabled employees to compete with other applicants for vacant positions when no reasonable accommodation can keep them in their existing job. See Smith v. Midland Brake, Inc., 180 F.3d 1154, 1169 (10th Cir. 1999) (en banc). However, BNSF said, Smith “is not good law in light of the Supreme Court’s decision in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002).” App’t App’x at 104.

B. District Court Opinion

The district court agreed with BNSF that “‘exhaustion of administrative remedies is a jurisdictional prerequisite to suit.’” App’t App’x at 74 (quoting Jones v. United Parcel Serv., Inc., 502 F.3d 1176, 1183 (10th Cir. 2007)). “[T]he parties’ stipulation,” the court said, “cannot manufacture jurisdiction where none exists.” Id. at 75. The court then held that Lincoln and Mosbrucker had not exhausted their administrative remedies for post-charge denials of transfers. Accordingly, it considered only the denials of transfers occurring within the 300-day charge-filing period. Id. at 75-78.

With respect to this limited universe of rejections, the court held that no reasonable jury could find that Lincoln and Mosbrucker were qualified for the jobs at issue. Id. at 105. The court found it unnecessary to resolve the parties’ dispute over whether an employer may require employees to compete for vacant positions when using reassignment as a reasonable accommodation under the ADA. Id. at 104.

Summary of Argument

The district court’s holding that exhaustion of administrative remedies is a jurisdictional requirement ignores twenty-five years of binding precedent from the Supreme Court and this Court. As the case law makes clear, Title VII (and, by extension, the ADA, see 42 U.S.C. § 12117) imposes exhaustion requirements and jurisdictional requirements in separate provisions, and neither provision cross-references the other. Both the Supreme Court and this Court have held that Title VII’s failure to define exhaustion of administrative remedies as clearly jurisdictional means that exhaustion is not a jurisdictional prerequisite to suit. In holding otherwise, the district court relied upon a line of cases from this Court that wrongly ignored binding Supreme Court law. This Court has since corrected its mistake, overruled its earlier cases, and clarified that where, as here, a statute does not clearly indicate that a threshold limitation is jurisdictional, it must be considered a condition precedent subject to waiver. Accordingly, the district court should have enforced BNSF’s waiver and allowed Lincoln and Mosbrucker to challenge the post-charge denials of transfer, not just the denials occurring within the 300-day charge-filing period.

This Court should reject any attempt by BNSF to seek affirmance on the alternative ground that Lincoln and Mosbrucker were not the best-qualified candidates when they sought transfers as a reasonable accommodation for their disabilities. Smith v. Midland Brake squarely holds that when an employee with a disability can no longer perform the essential functions of his job with or without a reasonable accommodation but satisfies the employer’s qualification standards for a vacant position, the employer must reassign him into that position without competition. The Supreme Court’s decision in U.S. Airways v. Barnett does not undermine Smith—in fact, it actually reinforces Smith’s holding.

Argument

In holding that exhaustion of administrative remedies is a jurisdictional requirement, the district court ignored binding law to the contrary. See Arbaugh v. Y&H Corp., 546 U.S. 500, 515-16 (2006); Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982); Gad v. Kansas State Univ., 787 F.3d 1032 (10th Cir. 2015). Neither party cited these controlling cases to the court. The jurisdictional question is potentially dispositive in this case because, if resolved correctly, it means that BNSF’s waiver is valid and the district court should have allowed Lincoln and Mosbrucker to challenge not only the denials of transfers occurring within the 300-day charge-filing period, but all post-charge denials as well.

In Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982), the Supreme Court expressly held that “filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.” Id. at 393. The Court explained that Title VII (whose enforcement mechanism the ADA adopts, 42 U.S.C. § 12117) contains separate provisions for jurisdiction and preconditions to suit, and that the provisions do not cross-reference one another. Id. at 393-94. The Court also pointed to the statute’s legislative history and to the “[m]ore weighty inferences . . . to be drawn” from cases adjudicating Title VII claims of litigants who had not filed EEOC charges at all, which would not have been possible if the requirement of timely charge-filing were jurisdictional. Id. at 396-97. Finally, the Court took note of the “guiding principle for construing the provisions of Title VII” it had announced in Love v. Pullman Co., 404 U.S. 522 (1972): that “a technical reading would be ‘particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.’ . . . That principle must be applied here as well.” Id. at 397 (quoting Love, 404 U.S. at 527).

The Court expanded upon its reasoning in Arbaugh v. Y&H Corp., 546 U.S. 500 (2006). “If the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional,” the Court said, “then courts and litigants will be duly instructed and will not be left to wrestle with the issue. But when Congress does not rank a statutory limit on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.” Arbaugh, 546 U.S. at 515-16.

Until recently, this Court erroneously continued to follow its pre-Zipes precedent and held that exhaustion of administrative remedies is a jurisdictional prerequisite to suit. See, e.g., Jones v. United Parcel Serv., 502 F.3d at 1183; Shikles v. Sprint/United Mgmt. Co., 426 F.3d 1304, 1310, 1317 (10th Cir. 2005). The district court relied upon this line of cases in refusing to recognize BNSF’s waiver.

However, in Gad v. Kansas State University, 787 F.3d 1032 (10th Cir. 2015), this Court acknowledged that its precedents had not accounted for Zipes and Arbaugh. “In Title VII cases,” the Court said, “we primarily look to whether a limitation is contained in Title VII’s jurisdictional subsection to determine Congressional intent.” Id. at 1038 (citing Arbaugh and Zipes). Faced with the issue of whether a claimant’s failure to verify EEOC charges was a jurisdictional bar to suit, the Gad panel held that it was not, observing that, “[l]ike the timely filing requirement in Zipes and the 15–or–more–employee requirement in Arbaugh, verification ‘appears in a separate provision that does not speak in jurisdictional terms or refer in any way to the jurisdiction of the district courts.’” Id. This ruling brought this Court in line with the overwhelming majority of other circuits.^{^[2]}

Several panels of this Court have characterized Gad as “suggesting” or questioning, rather than holding, that exhaustion of administrative remedies is a condition precedent and not a jurisdictional requirement. See Wickware v. Manville, 676 F. App’x 753, 767 n.4 (10th Cir. 2017) (“Gad raises the question of whether the district court’s jurisdictional rationale here remains legally viable.”); Pham v. James, 630 F. App’x 735, 738 (10th Cir. 2015) (“[W]e need not decide whether the failure to cooperate in good faith with the EEOC results in a lack of jurisdiction . . . .”) Arabalo v. City of Denver, 625 F. App’x 851, 860 (10th Cir. 2015) (“we do not decide today” whether Gad held that exhaustion of administrative remedies is never jurisdictional or whether its holding was limited to the verification requirement). But see Macias v. S.W. Cheese Co., 624 F. App’x 628, 634 (10thCir. 2015) (describing Gad as “discussing various exhaustion requirements, including timely filing of administrative charge, and holding that absent express congressional direction, such requirements should not be treated as jurisdictional”).

Contrary to the understanding of these panels, Gad did hold that exhaustion of administrative remedies is not a jurisdictional requirement.[3] In doing so, the Gad panel followed longstanding precedent allowing one panel to overrule another when faced with a superseding, contrary Supreme Court decision. See United States v. Hathaway, 318 F.3d 1001, 1006 (10th Cir. 2003); United States v. Killion, 7 F.3d 927, 930-31 (10th Cir. 1993). As the Gad Court put it:

In a vacuum, the language from Shikles might appear to enshrine all exhaustion requirements . . . as jurisdictional prerequisites, regardless of whether Congress evidenced intent to characterize them as such by placing them in Title VII’s jurisdictional subsection. . . . That logic, however, is at odds with the Supreme Court’s instructions in subsequent cases and cannot be squared with current law. Since Shikles, the Supreme Court . . . reemphasized that we should not treat requirements as jurisdictional without express congressional direction. . . . To the extent our previous cases would require a contrary result, these “superseding contrary decision[s]” of the Supreme Court “control[ ] our analysis.”

787 F.3d at 1039-40 (internal citations omitted); see also id. at 1040 (noting the Supreme Court’s instruction in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 91 (1998), that “drive-by jurisdictional rulings . . . have no precedential effect,” and stating that “Shikles’s statement that Title VII exhaustion is a ‘jurisdictional prerequisite’ can be traced back to two cases, both of which stated the proposition with little extended analysis.”). Moreover, Gad observed that “in Shikles itself we recognized the tension between classifying cooperation as a requirement of Title VII and the rule against ‘read[ing] requirements into Title VII . . . beyond those expressly provided by Congress.’” Id. at 1039 n.5 (quoting Shikles, 426 F.3d at 1314). “Our analysis in this case,” Gad said, “should resolve that tension.” Id.

Echoing Gad, this Court recently observed that “exhaustion in this context might be better characterized as a claims-processing obligation.” Jones v. Needham, 856 F.3d 1284, 1289 (10th Cir. 2017). The instant panel should now clearly state that this is circuit law. Even if the panel disagrees that Gad already resolved the issue, the instant panel has the power to do so. Hathaway, 319 F.3d at 1006. Panels in other circuits have relied on Zipes and Arbaugh to reverse their own circuit precedent holding that exhaustion of administrative remedies is jurisdictional. See Fowlkes, 790 F.3d at 385 (2d Cir.) (resolving intra-circuit conflict); Allen, 545 F.3d at 400-02 (6th Cir.) (reversing precedent in light of Arbaugh); Gibson, 201 F.3d at 993-94 (7th Cir.) (resolving intra-circuit conflict). This Court should do the same. In the alternative, if the panel does not believe that it has the power to overrule circuit precedent, the EEOC urges the Court to hear this matter initially en banc. See Wilson v. Sirmons, 549 F.3d 1267 (10th Cir. 2008) (ordering initial hearing en banc sua sponte).

B. Smith v. Midland Brake precludes this Court from affirming on the alternative ground that Lincoln and Mosbrucker were not the most qualified applicants when they sought reassignment as a reasonable accommodation for their disabilities.

In Smith v. Midland Brake, Inc., this Court held that, absent undue hardship, the ADA requires an employer to reassign a disabled employee into a vacant position without competition when he no longer meets the requirements of his current job but satisfies the employer’s qualification standards for the vacancy. 180 F.3d at 1164. Contrary to BNSF’s argument in the district court, U.S. Airways v. Barnett strengthens, rather than abrogates, Smith’s holding.

The ADA requires employers to provide a reasonable accommodation for otherwise qualified individuals with a disability and defines the failure to do so as one form of “discrimination.” 42 U.S.C. § 12112(b)(5)(A). Reasonable accommodations “may include” a variety of options, including “reassignment to a vacant position,” and must enable the disabled employee to perform the essential functions of the job that he “holds or desires.” Id. §§ 12111(8), 12111(9)(B). Smith correctly held that “the mere opportunity to apply for a job with the rest of the world” cannot satisfy this standard. 180 F.3d at 1164. In reaching this conclusion, the Court deferred to the longstanding position of the EEOC. Id. at 1165-67, 1170 (citing EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, 2002 WL 31994335, at question 29 (Oct. 17, 2002)); see also Duvall v. Georgia-Pac. Consumer Prods., 607 F.3d 1255, 1261 n.2 (10th Cir. 2010) (“As the agency tasked with enforcing the ADA, we accord the views of the EEOC substantial deference.”).

As Smith explained, requiring a qualified disabled employee to compete for reassignment “does violence to the literal meaning of the word reassignment and . . . render[s] the reassignment language in 42 U.S.C. § 12111(9) a nullity.” Id. at 1164. The reassignment provision, the Court noted, does not say that simply permitting a disabled employee to apply for a vacancy qualifies as a reasonable accommodation. “‘An employee who on his own initiative applies for and obtains a job elsewhere in the enterprise would not be described as having been “reassigned,”’” the Court said. “‘[T]he core word ‘assign’ implies some active effort on the part of the employer.’” Id. (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1304 (D.C. Cir. 1998) (en banc)). The Court added that to read the statute otherwise “would . . . judicially amend the statutory phrase ‘qualified individual with a disability’ to read, instead, ‘best qualified individual, notwithstanding the disability.’ However, these are not the words as Congress wrote them . . . .” Id. at 1167-68; see also Davoll v. Webb, 194 F.3d 1116, 1131-32 (10th Cir. 1999) (when reassignment is a reasonable accommodation, “‘then the disabled employee has a right in fact to the reassignment, and not just to the consideration process leading up to the potential reassignment’”) (quoting Smith, 180 F.3d at 1166).^{^[4]}

The only statutory exception to the reasonable accommodation obligation, Smith said, is “undue hardship” on the employer. 180 F.3d at 1167 (quoting 42 U.S.C. § 12112(b)(5)(A)). “Congress has already significantly cabined the obligation to offer reassignment to a qualified employee who is disabled,” the Court said, “so as to ensure that it is not unduly burdensome, or even particularly disruptive, of an employer’s business.” Id. at 1170. The Court observed that employers must only reassign to an existing vacant position, which would not include positions to which other employees “have a legitimate contractual or seniority right.” Additionally, an employee must only be reassigned if he is “qualified” for the vacancy. The employer need not promote the disabled employee, and the employer, not the employee, may select which of multiple appropriate vacancies it will offer.^{^[5]} Id. “If further limitations are to be sought,” the Court said, “they must come from Congress.” Id.

BNSF wrongly argues that the Supreme Court’s decision in Barnett abrogated Smith. The truth is that Barnett has given Smith new force. The Court assumed in Barnett that a request for reassignment would be reasonable “in the run of cases” because the ADA lists “reassignment to a vacant position” as one type of reasonable accommodation. Barnett, 535 U.S. at 402-03 (citing § 12111(9)). The Court held that reassignment was not reasonable in Barnett only because it would violate a seniority system, which holds a special status in American labor law. Id. at 403-04 (noting that without such an exception, “employees’ expectations of consistent, uniform treatment . . . upon which the seniority system’s benefits depend” would be undermined). Even in the context of seniority systems, the Barnett Court left open the possibility that “special circumstances” might make assignment to a vacant position reasonable in a particular case. Id. at 405.

This Court has not seen any conflict between Smith and Barnett. In Duvall v. Georgia-Pacific Consumer Products, the Court cited Smith with approval and turned to Barnett for guidance on how to determine whether a position is “vacant” within the meaning of Smith. 607 F.3d at 1260-61. The Court did not indicate that Barnett had called Smith into question in any way.

Indeed, the Seventh Circuit has held that Barnett had the opposite effect. In EEOC v. United Airlines, Inc., 693 F.2d 760 (7th Cir. 2012), the Seventh Circuit held that Barnett compelled it to overrule its own precedent holding that reassignment is not mandatory. Id. at 761 (overruling EEOC v. Humiston-Keeling, Inc., 227 F.3d 1024 (7th Cir. 2000)). The court explained that Barnett “rejected [an] anti-preference interpretation of the ADA, noting that this argument ‘fails to recognize what the Act specifies, namely, that preferences will sometimes prove necessary to achieve the Act’s basic equal opportunity goal.’” Id. at 763 (quoting Barnett, 535 U.S. at 397). The Seventh Circuit rejected BNSF’s argument here that any neutral rule should defeat the reassignment obligation. “Merely following a ‘neutral rule’ did not allow U.S. Airways to claim an ‘automatic exemption’ from the accommodation requirement of the Act,” the court said. Id. “Instead, U.S. Airways prevailed because its situation satisfied a much narrower, fact-specific exception based on the hardship that could be imposed on an employer utilizing a seniority system. . . . [V]iolation of a best-qualified selection policy does not involve the property-rights and administrative concerns (and resulting burdens) presented by the violation of a seniority policy.” Id. at 763, 764.

As BNSF notes, the Eleventh Circuit disagrees with the Seventh Circuit and holds that Barnett allows any neutral workplace rule to override the reassignment obligation. See EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1346 (11th Cir. 2016). The Eleventh Circuit wrongly reasoned that “the intent of the ADA is that an employer needs only to provide meaningful equal employment opportunities” rather than preferential opportunities. Id. at 1346 (citations omitted). Barnett, however, rejected this analysis, explaining that “[b]y definition, any special ‘accommodation’ requires an employer to treat an employee with a disability differently, i.e., preferentially.” Barnett, 535 U.S. at 397; cf. EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2034 (2015) (“[W]hen an applicant requires an accommodation as an ‘aspec[t] of religious . . . practice’ [under Title VII], it is no response that the subsequent ‘fail[ure] . . . to hire’ was due to an otherwise-neutral policy. Title VII requires otherwise-neutral policies to give way to the need for an accommodation.”).

Contrary to Barnett, BNSF does not rely on a seniority system to excuse its failure to reassign Lincoln and Mosbrucker into vacant positions for which they were qualified. It relies, instead, on its policy of hiring only the best qualified applicants. As a general rule, most employers require candidates to compete for vacancies. If such a policy could defeat a reassignment request, this exception would swallow Barnett’s rule that reassignment is ordinarily a reasonable accommodation.

For all of these reasons, this Court should not affirm on the alternative ground that Lincoln and Mosbrucker were not the best-qualified candidates. Smith and Barnett foreclose that argument.

Conclusion

The district court wrongly held, in violation of Supreme Court and Tenth Circuit precedent, that exhaustion of administrative remedies is a jurisdictional requirement. Because exhaustion is properly considered a condition precedent to suit, subject to waiver, the district court should have enforced BNSF’s waiver and considered denials of transfer occurring after Lincoln and Mosbrucker filed their administrative charges.

If BNSF argues for affirmance on alternative grounds, this Court should reject any argument that Barnett now allows any neutral workplace policy to override the ADA’s reassignment obligation. Barnett recognizes that reassignment is reasonable “in the run of cases,” and allowed an exception in that case only because of the unique nature of seniority systems, which are not at issue here. Smith continues to be binding precedent outside the context of seniority systems.

For the foregoing reasons, the EEOC respectfully asks this Court to reverse the award of summary judgment and remand with instructions for the district court to consider the denials of transfer occurring after Lincoln and Mosbrucker filed their charges.

Respectfully submitted,

JAMES L. LEE

Deputy General Counsel

JENNIFER S. GOLDSTEIN

Associate General Counsel

ELIZABETH E. THERAN

Acting Assistant General Counsel

/s/ Gail S. Coleman

Attorney

U.S. EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

Office of General Counsel

131 M Street, NE, Room 5SW24L

Washington, DC 20507

(202) 663-4055

gail.coleman@eeoc.gov

[1] The factual representations in this brief are based on the district court’s opinions denying BNSF’s motion to dismiss and granting its subsequent motions for summary judgment. App’t App’x at 32, 57.

[2] See Martinez-Rivera v. Commonwealth of P.R., 812 F.3d 69, 78 (1st Cir. 2016); Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 385 (2d Cir. 2015); Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 262 (3d Cir. 2006); Allen v. Highlands Hosp. Corp., 545 F.3d 387, 402 (6th Cir. 2008) (Age Discrimination in Employment Act, relying upon Arbaugh); Gibson v. West, 201 F.3d 990, 993 (7th Cir. 2000); Jackson v. Seaboard Coast Line R.R., 678 F.2d 992, 1009-10 (11th Cir. 1982); Artis v. Bernanke, 630 F.3d 1031, 1034 n.4 (D.C. Cir. 2011). But compare Stache v. Int’l Union of Bricklayers & Allied Craftsmen, 852 F.2d 1231, 1233 (9th Cir. 1988) (exhaustion of administrative remedies is not jurisdictional), with Sommatino v. United States, 255 F.3d 704, 708 (9th Cir. 2001) (notwithstanding Zipes, “substantial compliance with the presentment of discrimination complaints to an appropriate administrative agency is a jurisdictional prerequisite”) (emphasis in original). The question remains open in the Fifth Circuit. Ruiz v. Brennan, 851 F.3d 464, 472 (5th Cir. 2017). Only the Fourth Circuit clearly holds that exhaustion of administrative remedies is a jurisdictional requirement, but that court has not attempted to reconcile its rule with Zipes. See Davis v. N.C. Dep’t of Corr., 48 F.3d 134, 140 (4th Cir. 1995).

[3] The EEOC disagrees with Lincoln and Mosbrucker on this point. See Opening Br. at 21 (“Though Jones [v. United Parcel Service] did indeed hold that exhaustion was jurisdictional, there is substantial reason to doubt whether this is still the law in this Circuit.”). In the EEOC’s view, Gad overruled Jones v. United Parcel Service.

[4] The Seventh Circuit and the D.C. Circuit agree. EEOC v. United Airlines, Inc., 693 F.2d 760, 761 (7th Cir. 2012); Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1304 (D.C. Cir. 1998) (en banc). But see EEOC v. St. Joseph’s Hosp., Inc., 842 F.3d 1333, 1346 (11th Cir 2016) (ADA does not require “affirmative action”); Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 459 (6th Cir. 2004) (ADA does not require “preferential treatment”; not citing Barnett); Huber v. Wal-Mart Stores, Inc., 486 F.3d 480, 483 (8th Cir. 2007) (“ADA is not an affirmative action statute”; relying on now-overruled Seventh Circuit precedent); Daugherty v. City of El Paso, 56 F.3d 695, 709 (5th Cir. 1995) (ADA does not require “affirmative action”; pre-Barnett).

[5] To this list, the EEOC would add that reassignment need not be offered to employees who can be accommodated in their current jobs, as reassignment is an accommodation of last resort. EEOC Guidance, 2002 WL 31994335, at question 29; see also Davoll, 194 F.3d at 1131 (same).